Recent UW Law Faculty Scholarship: Clinical Education at WI, Race-Based Remedies in Criminal Law, the Federalist Constitution, and the NCAA in the Supreme Court

Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

  • “Clinics at Wisconsin: Comprehensive, In-Depth Pedagogy and Bottom-Up Innovation”
    2021 Wisconsin Law Review 409 (2021) by KEITH A. FINDLEY and LOUISE G. TRUBEK, (UW Law)
    The University of Wisconsin Law School has been a pioneer in clinical education. Experiential education, involving actual legal advocacy and practice, started at Wisconsin in the 1970s before many U.S. law schools had even thought about what came to be called law school “clinics.” These initial efforts developed out of the Law School’s commitment to innovations in criminal justice and its support of public interest law and administrative advocacy.
  • “Race-Based Remedies in Criminal Law” William & Mary Law Review, Forthcoming by ION MEYN (UW Law)
    This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. …  This Article, however, contends that within the criminal system, strict scrutiny requirements do not pose an insurmountable obstacle to race-based policies. There is promising decisional law surrounding the use of race-conscious efforts to address criminal-system challenges. Drawing on this favorable doctrine, the Article tests the constitutionality of race-based remedies in one of the most dynamic areas in the criminal system: the use of risk assessment tools, which jurisdictions are increasingly relying upon to make decisions, even as these tools reproduce racial harms. To enrich the analysis, the Article presents a case study of a jurisdiction struggling to mitigate racial harms perpetuated by its pre-trial risk assessment tool.
  • “The Federalist Constitution: Foreword” 89 Fordham L. Rev. 1669 (2021) by DAVID S. SCHWARTZ (UW Law), JONATHAN GIENAPP, JOHN MIKHAIL, and RICHARD PRIMUS
    Historical inquiry into constitutional meaning is distorted by long-standing received narratives and interpretations that are shaped by the political triumph and electoral dominance of the Jeffersonian-Republican and Jacksonian-Democratic parties between 1800 and 1860. But the original meanings of the Constitution were sharply contested and prominently featured some long-forgotten interpretations advanced by the Federalists. This foreword, and the articles it introduces, excavate the constitutional ideology of the Federalist Constitution, whose understanding is essential to a historically accurate picture of the founding.
  • “The NCAA in the Supreme Court—Analytic Confusion Resulting in Inexplicable Results”
    2021 Concurrences: Competition L. Rev., no. 2 (Mar. 31, 2021) by PETER CARSTENSEN (UW Law)
    The Supreme Court recently heard arguments in NCAA v. Alston. The case involves a challenge to the NCAA’s regulations that restrict the amount of financial aid that colleges may provide to athletes. The lower courts rejected the NCAA’s arguments for its right to impose its regulations and substituted their own rule governing the limits of financial aid. The case is framed around the “rule of reason.” This is a fundamental error of analysis. The NCAA is either a cartel or lawful regulatory agency. It is not a legitimate joint business venture producing a good or service to which some restraints on the participants’ freedom to compete are reasonably ancillary.

To access all the papers in the University of Wisconsin Law School Legal Studies Research Paper Series, please use the following URL: